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Last-Minute Regulatory Initiatives at OFCCP

There is a historical tendency in the final months of an administration to increase regulatory activity in an attempt to solidify its legacy. As the Bush administration comes to a close, it appears the U.S. Department of Labor’s (DOL) Office of Federal Contract Compliance Programs (OFCCP) has its primary attention.

Keep up with the latest changes in federal laws and regulations with the Federal Employment Law Insider

Focus on disability accommodations
For the first time in its history, the OFCCP is policing contractor efforts to accommodate individuals with disabilities during government compliance reviews. The agency is putting particular focus on the accessibility of online application systems to candidates with vision, hearing, and mobility impairments.

Under the OFCCP’s Online Application Selection System Directive, announced September 10, 2008, “contractors must ensure that qualified individuals with disabilities and disabled veterans have an equal opportunity to apply and compete for jobs.” Online systems must operate with adaptive technology, computer graphics must be adjusted for those with visual impairments, and company kiosks must be wheelchair-accessible.

Helpful resources include the DOL’s Office of Disability Employment Policy (www.dol.gov/odep) and the Job Accommodation Network (www.jan.wvu.edu). Going forward, the OFCCP will retain and investigate individual disability discrimination complaints involving online application systems, rather than refer them to the Equal Employment Opportunity Commission.

HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including the Americans with Disabilities Act

New veterans initiative
In addition, the OFCCP recently announced the Good-Faith Initiative for Veterans Employment (G-FIVE), designed to reward best practices for the employment and advancement of veterans. Contractors may self-nominate for G-FIVE designation, or an OFCCP regional director may recommend nomination based on the outcome of a compliance review. The “carrot” designed to encourage self-nomination is an exemption from OFCCP compliance reviews for three years. Contractors, however, should be wary of the accompanying “stick” — a review by the OFCCP to confirm that the nominee is “compliant,” which sounds suspiciously like an audit.

Other developments include the OFCCP’s issuance on September 2, 2008, of additional guidance on contractors’ use of the newly defined race and ethnicity categories included on the revised EEO-1 form. Compliance officers have been instructed to evaluate whether contractors are permitting individuals to choose to self-identify as belonging to more than one race, either by allowing individuals to select more than one of the single race categories or by selecting the “two or more races” category.

More targeted reviews
Finally, the OFCCP hopes to use its limited resources more effectively by tailoring its long-standing “one size fits all” assembly line approach to compliance reviews. Effective September 17, 2008, the OFCCP began to employ Active Case Management, a “tiered” review process, and “abbreviated desk audits,” requiring closure of a compliance review at the desk audit stage absent indicators of systemic discrimination in the contractor’s personnel activity and compensation data. “Systemic discrimination” is defined as “a potential affected class of 10 or more applicants/workers.” Compliance officers are to resolve minor affirmative action plan deficiencies during the desk audit. By closing more audits earlier and targeting establishments where discrimination most likely will be found, the OFCCP hopes to increase both its efficiency and its success rates.

While many contractors may find reason to celebrate early audit closures, others still may face a full-blown OFCCP review even though their data is “squeaky clean.” Under a new quality control initiative, the OFCCP will randomly conduct a full audit of every 25th contractor listed in the Federal Contractor Selection System and an on-site review of every 50th.

Bottom line
Contractors had better get ready! The OFCCP planned on issuing 2,500 scheduling letters in October 2008, with 5,000 to follow in March 2009.